Devi Prasad vs Vith Addl. District Judge Varanasi & Ors.

A.R Singh, J.

This case has some unfortunate history behind it. On 551993, the case was listed before me for admission, on which date an order was made for its final disposal in August, 1993 and the stay order dated 1931991 was also vacated on that very date. However, subsequently, on the mention made by the learned Counsel for the petitioner, the order could not be signed and the case was directed to be put up as unlisted on 1051993. For one or the other reason, on the request made by learned Counsel for the petitioner, the case continued to be adjourned from one to another date. Ultimately, on 1751993, order dated 551993 was signed. Again on 1851993, the case was finally heard and the writ petition was dismissed with the direction that reasons for the dismissal of the writ petition will be given on 21st May, 1993. This course was adopted on account of the fact that hearing of the case lasted on that date throughout the day and no time was left for dictation of the judgment; and the Counsel for the opposite party apprehended that the petitioner may on the next date adopt some course to prolong the pendency of the writ petition. It appears that after 18593 the file of the case was not sent to me for dictation of the reasons of the judgment and it remained in the office.

An application was filed before me on behalf of the petitioner by S/Sri A.P. Srivastava and P.P. Srivastava on 971993 asking for rehearing of the writ petition and also for grant of stay order presumably on the ground that petitioner''s Counsel Sri VM. Sahai had not been heard on 1851993 when the writ petition was dismissed. This application of the petitioner was also rejected by me vide order dated 971993.

After rejection of the application in the normal course, the file should have been sent to me for dictation of the reasons of my order dated 185r93 but again it was retained in the office and due to my transfer to Lucknow Bench of the Court, file of the case remained in the office and the reasons for the order dated 18593 could not be given. Above abnormal happenings in the case also escaped my notice for the above reasons.

Ultimately on 19111996, an application was filed on behalf of the heirs of respondent No. 3 as also by one Narain Das son of Nand Lal, Jwala Prasad respondent No. 4 and Batuk Prasad, respondent No. 5 for seeking clarification of my order dated 1851993 and 2151993. It is to be noticed that no order dated 2151993 had been passed in the case. This application was filed for getting clarification of the position regarding pendency of the writ petition in the light of certain developments, which had taken place on account of nondictation of the reasons by me pursuant to the passing of the order on 1851993 dismissing the writ petition.

It appears that so as to stall the execution proceedings, an affidavit was filed on behalf of the petitioner making a representation to the execution Court that the writ petition was still pending in this Court which had not been decided till then. In support of his affidavit, a questionanswer having been obtained from the Court''s Registry was also filed for giving proof of the pendency of the writ petition. It was in these circumstances that the application dated 7111996 was filed before me by the decree holder.

On the said application, 20111996 was fixed and the application was directed to be put up with the record of the writ petition. Learned Counsel for the applicant was also directed to inform the learned Counsel for the petitioner that the case willbe taken up on 20111996.

On 20111996, learned Counsel for the petitioner did not appear, however looking to the urgency of the matter, a direction was made on that date for staying the disposal of the application filed before the execution Court by the decree holder until further orders of the Court in case the same had already not been disposed of. A direction was also issued for listing of the application, withrecord on 28111996.

On 28111996, Sri Anand Prakash Srivastava appeared in the Court on behalf of the petitioner; on his request the case was again fixed for 2nd December, 1996 so as to enable Sri S.N. Singh, learned Counsel for respondent No. 3 to appear and argue the case. Direction was also issued for the appearance of Sri VM. Sahai who had initially appeared on petitioner''s behalf and had argued the case leading to the passing of the order dated 1851993. On 2121996, Sri VM. Sahai appeared before me and stated that he had nothing to argue in the case and that the writ petition had already been argued by him and was decided on 1851993 after he had concluded his arguments.

Taking note of the previous happenings which took place in this case after 1851993, a serious view was taken on the conduct of Sri A.P. Srivastava, Advocate and the two officials of the Registry who were instrumental in producing the questionanswer from the Registry for making wrongful representation before the execution Court that the writ petition was still pending and was not yet decided. Accordingly, contempt proceedings were initiated on that very day against Sri A.P. Srivastava, Advocate, and the two officials of the Registry of this Court.

On 18121996, all the three persons appeared before me through their respective Counsel. On their request they were granted time for filing their replies. A request was also made in my order passed on that date to the Hon''ble the Chief Justice for causing an enquiry to be made and action to be initiated against officials who were responsible for issuance of the questionanswer and for wrongfully retaining the file in the office for such a long time despite the order dated 1851993 as a result whereof reasons for the judgment which was to be dictated and the matter remained as it was on 1851993.

I have not been informed of any action that may have been taken by Hon''ble the Chief Justice in the matter thus for.

It is how, at this stage, I am proceeding to dictate my reasons in support of the order passed in the case on 1851993.

This writ petition has been filed by tenant against the judgment and decree passed by the Judge Small Cause Court Varanasi dated 1521991 in Small Cause Case No. 606 of 1973. Small Cause suit was filed by respondent No. 3 seeking petitioner''s eviction from house No. D10/53 situate in mohalla Sakshi Vindyaka, Varanasi which comprised of shop numbers 3 and 4. The Judge, Small Cause Court (hereafter referred to as ''respondent No. 2'') decree the suit of the landlord (hereafter called respondent No. 3) and the Vlth Additional District Judge (hereafter called respondent No. 1) too dismissed petitioner''s revision which he had filed under Section 25 of the Provincial Small Cause Courts Act against the judgment of the trial Judge.

In brief, the facts are that the house No. D10/53 Sakshi Vinayaka, Varanasi, comprising of Shop Nos. 3 and 4 was let out to the petitioner by respondent No. 3 on a monthly rent of Rs. 75. Subsequently, on the permission granted by respondent No. 3, two shops, namely shop Nos. 3 and 4, were converted into one shop by the petitioner after removing the dividing wall in between the two shops. The suit was filed by respondent No. 3 seeking eviction of the petitioner on the ground of subletting with the allegation that he had sublet the shops in dispute to one Batuk Prasad and the said Batuk Prasad was running his own business in the shop in the name and style of M/s. Indian Antiquities and the said Batuk Prasad was in its exclusive possession with which the petitioner has no concern hence he was liable to be evicted from the shops. Relief for payment of arrears of rent and damages till the delivery of possession was also claimed.

Petitioner, as well as, respondent No. 5 and Jwala Prasad respondent No. 4 who was also impleaded as defendant No. 2 in the suit, filed their written statement and contested the case, inter alia, on the ground that the shops in dispute had never been sublet and that the petitioner was still in its possession; he was running his business along with his father Batuk Prasad, respondent No. 5. It was further pleaded that in a family partition between the petitioner and respondent Nos. 4 and 5, the shops in dispute fell in the share of respondent No. 4 another brother of the petitioner, but after respondent No. 4 refused to take the same and opted for another shop, as his share, the shop was given in the share of respondent No. 5 who happens to be the father of the petitioner as well as of respondent No. 4. It was in this manner, stated the petitioner, that respondent No. 5 was running his business in the said shop. It was further pleaded that the petitioner had not severed his relationship from the shop or interest as its tenant; he was still having his own business in the said shop along with respondent No. 5 in whose favour there was no subletting; hence the suit was liable to be dismissed.

The trial Court, after considering the respective contentions of the parties in their respective pleadings, as well as the evidence which was tendered by them, came to the conclusion that the petitioner had sublet the shop in dispute to respondent No. 5 without obtaining permission either of respondent No. 3 or of the District Magistrate Varanasi; he had also severed his relation as tenant from the said shop and was left with no interest therein and the business which was being run in the shop in dispute belonged exclusively to Batuk Prasad, respondent No. 5; hence it was a clear case of subletting of the shop by the petitioner in favour of respondent No. 5. It was further found that it was respondent No. 5 who was paying the rent of the shop from his own account to respondent No. 3 through the petitioner and the petitioner had never paid its rent through his own resources obviously for the reasons that it was respondent No. 5 who was running his business in the said shops. On above findings, trial Court decreed the suit.

Feeling aggrieved from the decree of eviction and payment of rent and damages, which was passed by the Judge Small Cause, petitioner filed revision under Section 25 of Provincial Small Cause Courts Act which however also met with failure and the revisional Court too affirmed the findings which had been recorded by the trial Court in the suit. The decree passed by the trial Court for the eviction of the petitioner and payment of arrears of rent and damages was also confirmed.

Sri VM. Sahai, learned Counsel for the petitioner unsuccessfully tried to attack the findings which had been recorded by the trial Court and have also been affirmed by the revisional Court. Thus those findings including the finding of subletting of the shops in dispute by petitioner to his father Batuk Prasad respondent No. 5, therefore, being a finding based on appreciation of evidence in the case cannot be reagitated in this writ petition. Sri Sahai too conceded that since it was a finding of fact, having been arrived at on appreciation of evidence, which was adduced by the parties, it could hardly be questioned as no piece of evidence was left unconsidered by the Courts below for reaching on that finding. I, therefore, proceed hereafter on the basis that the petitioner had sublet the shops in dispute to respondent No. 5 and that he had no concern with those shops in which respondent No. 5 alone was running his exclusive business.

It was then contended by Sri Sahai that since the incident of subletting, as per the own showing of respondent No. 3 who is now represented by this legal representatives, had occurred much earlier to the enforcement of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. 13 of 1972) (hereinafter referred to as ''the Act'') hence the suit for eviction of petitioner from the shops in dispute could only be filed under the provisions of Section 7 of U.P. (Temforary) Control of Rent and Eviction Act, 947 (U.P. Act No. Ill of 1947) and not under Section 20(2) of the Act.

It is also argued by Sri Sahai that respondent No. 3 was personally aware of the fact of subletting of the shops to respondent No. 5 by the petitioner and since he did not take appropriate action immediately thereafter the subletting estoppel will also apply and the s �.count too was liable to be disconcert and piton that to be dismissed. cured the principle of acquiesces " " account too was lia

The learned Counsel ha s confined his attack against the orders impugned in this writ petition only on these two grounds. Coming to the first ground first, it is necessary to refer to the relevant provisions in this respect.

The Act by Section 25(1) prohibits subletting in absolute terms. Its clause (2) however allows subletting with the written permission both of the landlord and of the District Magistrate. In the explanation appended to that Section, subletting has been assumed by way of fiction in two events, viz., firstly that the tenant has allowed the building (both residential or nonresidential) to be occupied by any person who is not a member of his family and in case of a nonresidential building the tenant who has been carrying on his business in the building admits a person who is not a member of his family as a partner or a new partner. The word ''family'' has been defined in the Act by Section 3(g). It rules out a parent of the tenant who has normally not been living with him from being a family member. In the present case, it was pleaded by the petitioner himself that there had been family partition between him, his brother and his father in which the shops in question ultimately came in the share of his father Batuk Prasad respondent No. 5 (defendant No. 3 in the suit) who was running his own business in the shop in the name and style of India Antiquities. Both the Courts below have come to the conclusion that petitioner has no concern with the business which was being run by Batuk Prasad in the shops which was his exclusive business. In view of these findings there remains no doubt that Batuk Prasad is .not a family member of the petitioner and both under Sections 12(1)(b) and 12(2) read with Section 25(1) and the explanation appended to it, subletting of the shops is fully made out under the Act.

A Full Bench of this Court in KesharBai v. District Judge, 1980 ARC 223 (EB.) has held that Section 12(1)(b) was retrospective in operation. In the light of the view taken by this Court in Keshar Bai (supra) notwithstanding the incident of deemed subletting occurring in respect of a building even before the enforcement of the Act it will all the more be a ground for the eviction of the tenant from the building by filing suit on the ground provided by Section 20(2) (e) of the Act. Subclause (e) of Section 20(2) of the Act too spells out in clear terms that a suit for eviction under Section 20(2) (e) can be filed even if the incident of subletting had taken place after the Act was enforced or it took place before it and during the time U.P. Act No. HI of 1947 was holding the field.

In view of the clear statutory position which is presented by the Act there is no merit in the first contention which has been raised by the learned Counsel for the petitioner, the contention is accordingly rejected.

Coming to the second contention of Sri Sahai that should not detain the Court for long. The question is one of fact. After analysing the evidence on the record both the Courts of fact have come to the conclusion that the plaintiff did not ever accept or acquiesce to the illegal subletting of the building by the petitioner. He never accepted rent of the building from Batuk Prasad. He also refused the rent when it was tendered to him by Batuk Prasad. Thus, there is overwhelming evidence to demonstrate that the plaintiff never accepted Batuk Prasad either as a tenant or as a subtenant of the petitioner. This argument too, therefore, has no merit.

No other point was argued. The writ petition accordingly fails and is dismissed with costs. Petition dismissed.